1. The Fourth Amendment requires a prompt judicial determination of probable cause
following a warrantless, custodial arrest to support ongoing pretrial detention. The
United States Supreme Court has enunciated a bright line rule that such a
determination is to occur within a reasonable period of time not to exceed 48 hours
after the arrest, and a failure to do so is presumptively unreasonable.

2. An appropriate remedy for failure to conduct a timely probable cause hearing will
depend on the particular facts and circumstances of the case, but dismissal of charges is
an extreme remedy only warranted if the prolonged detention substantially impedes a
defendant's ability to prepare a defense.

3. K.S.A. 1999 Supp. 8-235 prohibits any person from driving a motor vehicle upon a
highway without a valid driver's license unless expressly exempted; this prohibition
does not conflict with a recognized fundamental right to interstate travel.

4. Driving upon a highway is not a natural right, but a privilege subject to regulation
under the State's police power.

5. A police officer's efforts to elicit the name and address of a person legitimately
detained does not implicate a privilege against self-incrimination.

6. The requirement that a person placed under arrest is to be fingerprinted and
photographed is nontestimonial and does not violate a privilege against self-incrimination.

7. Proof of notice of mailing under K.S.A. 1999 Supp. 8-255(d) is not required when the
defendant has actual knowledge that his or her license has been suspended.

KNUDSON, J.: Brad Hershberger raises numerous issues on appeal following his
conviction for driving while license suspended, contrary to K.S.A. 1997 Supp. 8-262,
including: (a) whether failure to conduct a probable cause hearing within 48 hours after
arrest requires dismissal with prejudice, and (b) whether state law requiring Hershberger to
have a valid driver's license violates his constitutional right to travel.

We affirm. An illegal detention should not void a subsequent conviction absent a
showing of prejudice to the defendant's substantive rights, the constitutional right to travel is
not impaired by the State's licensing of motorists, and none of the other issues raised by
Hershberger have legal merit.

On Wednesday, January 7, 1998, Hershberger had appeared in municipal court in
Augusta and was convicted of driving while suspended and attempting to elude a police
officer. Later that same day, the officer who testified at the municipal court trial saw
Hershberger driving a vehicle in Augusta. Knowing Hershberger's license was suspended, the
officer contacted the police department and pointed out Hershberger's vehicle to another
officer. This other officer stopped the car. After Hershberger was arrested, he refused to
reveal his name.

On the afternoon of his arrest, a video first appearance hearing was held. Hershberger
refused to tell the judge his name, claiming it would be incriminating. The prosecutor did
not have the police reports, so the matter was continued until Friday at 1:30 p.m. The judge
ordered Hershberger to submit to fingerprinting and other booking procedures.

At the hearing 2 days later, charges still had not been filed; the prosecutor had not
received Hershberger's driving record from the Kansas Department of Revenue (KDR). The
State agreed Hershberger should be released and that a summons or warrant would be issued
when the State determined and filed the proper charge. The court agreed but told
Hershberger he would not be released from jail until he complied with a prior order to
complete the booking procedures. Hershberger apparently continued to refuse to comply
and remained in jail until January 13, 1998, at which time the jail officials were ordered to
release him.

On January 23, 1998, an information was filed charging Hershberger with felony
driving while suspended in violation of K.S.A. 1997 Supp. 8-262(a)(1)(C). The State also filed
an affidavit setting forth the factual basis for the charge. The State issued a summons and
alias summons to Hershberger ordering him to appear on February 23, 1998, for a hearing.
Hershberger received the latter summons and returned it to the district court by letter
claiming he had received it "inadvertently." He later argued he had not accepted service of
process, and, therefore, the court lacked jurisdiction.

Hershberger did not appear at the February 23 hearing, and the court issued a warrant
for his arrest. On March 12, 1998, Hershberger was released from the Sedgwick County jail
and arrested on the Butler County bench warrant. He had his first appearance in Butler
County the next day, at which time a preliminary hearing was set for April. Shortly
thereafter, Hershberger filed a petition for habeas corpus with the Supreme Court contending
his detention was unlawful. The petition was summarily denied. Hershberger v. Butler
County, Case No. 80,841, decided April 28, 1998.

Hershberger appeared pro se at a preliminary hearing on April 24, 1998. Various law
enforcement officers testified. After Hershberger continued to deny his identity, the State
called Lloyd Hershberger, the defendant's father, who identified the defendant as his son,
Brad. During the hearing, Hershberger challenged the court's bench warrant and asserted
numerous other legal issues included in his later motions.

Certified copies of the KDR's records were admitted at the preliminary hearing. The
KDR mailed a notice of suspension to Hershberger at a Wichita post office box on July 8,
1996, suspending his license effective in 30 days. This notice also indicated Hershberger had a
prior conviction for driving while suspended. Prior to his arrest in this case, Hershberger had
been cited for driving with a suspended license at least twice.

Hershberger was bound over for trial and arraigned. After Hershberger refused to
respond appropriately, the court entered a not guilty plea on his behalf and scheduled the
matter for a jury trial. Hershberger remained in custody until April 25, 1998, at which time
bond was posted.

Sometime after Hershberger was bound over to stand trial, an attorney entered an
appearance on his behalf. Counsel moved to dismiss the charge, contending the KDR's
notice of the suspension was not sent to Hershberger's last known address. After a hearing,
this motion was denied. Hershberger's motion challenging his detention also was argued, but
the matter was taken under advisement so the court could obtain transcripts from the prior
hearings. Subsequently, the trial court found that the State's detention of Hershberger was
not unlawful.

The case proceeded to bench trial on stipulated facts. Hershberger was found guilty of
misdemeanor driving while suspended, sentenced to 1 year's confinement, and then placed on
probation for 1 year. Hershberger filed a timely notice of appeal.

Hershberger filed two motions to arrest judgment, with one of the grounds being
newly discovered evidence. Hershberger presented the court with a letter from KDR
indicating he had a 90-day suspension remaining for driving while suspended. Hershberger
asked the court to arrest the judgment based on the theory he was eligible to reinstate his
license. Hershberger's motions were denied, and he has not filed a notice of appeal from any
of the trial court's post-trial rulings.

Unlawful Detention Claims

Hershberger claims the trial court erred in not dismissing the charges against him
because he was unlawfully detained by Butler County authorities. Hershberger argues the
State failed to hold a probable cause hearing within 48 hours as required by County of
Riverside v. McLaughlin, 500 U.S. 44, 47, 114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991), and,
consequently, the charges should have been dismissed.

McLaughlin was a class action civil suit filed against Riverside County,
challenging its
practice of holding combined probable cause hearings and arraignments for persons arrested
without a warrant. Under the County's procedures, arraignments were to be held within 2
days of arrest; this 2-day requirement, however, excluded weekends and holidays. The
plaintiff sought declaratory and injunctive relief requiring the County to provide quicker
probable cause determinations.

In McLaughlin, the issue was whether the County's procedures comported
with the
Fourth Amendment's requirement for a "prompt" judicial determination of probable cause
following a warrantless arrest as mandated by Gerstein v. Pugh, 420 U.S. 103, 43 L.
Ed. 2d 54,
95 S. Ct. 854 (1975). 500 U.S. at 47. In balancing the interests of the parties, the Court
recognized that some delays were inevitable. 500 U.S. at 55. To provide more certainty in
defining "prompt," however, the Court created a bright line rule that probable cause
determinations had to occur within 48 hours of arrest in order to comply with
Gerstein.
Once the detention exceeded 48 hours, the government was required to show a bona fide
emergency or justification for continuing the detention; the mere fact that a weekend
intervened was not sufficient. 500 U.S. at 56-57.

Hershberger first argues a McLaughlin violation occurred between January 7
and
January 13, 1998. We will assume for purposes of analysis that he is correct.

In Powell v. Nevada, 511 U.S. 79, 84-85, 128 L. Ed. 2d 1, 114 S. Ct. 1280
(1994), the
Supreme Court held that the McLaughlin standard applied and the defendant's
detention of 4
days prior to a hearing was presumptively unreasonable. In dicta, however, the Supreme
Court held that even though the detention was unreasonable, this did not require that the
defendant be released; nor was the defendant necessarily entitled to other relief such as
suppression of evidence. Instead, the Court remanded the case to the Nevada Supreme Court
to consider the appropriate remedy.

On remand, the Nevada Supreme Court found that the unreasonable delay was not
grounds for voiding the defendant's conviction. Powell v. State, 113 Nev. 41, 44,
930 P.2d
1123, cert. denied 522 U.S. 954 (1997), citing Gerstein v. Pugh, 420
U.S. at 119 (noting the rule
that an illegal arrest or detention does not void a subsequent conviction). The court also
found the Fourth Amendment's exclusionary rule would not automatically apply to
otherwise voluntary statements made during a prolonged detention. 113 Nev. at 45-46. The
Nevada court concluded that even if the trial court should have suppressed Powell's
statements made after the detention became unreasonable, the failure to do so was harmless
error in light of pre-arrest statements Powell had made to police. 113 Nev. at 46-47.

Other courts addressing the appropriate remedies for McLaughlin violations
also tend
to focus on suppressing evidence obtained during the prolonged detention rather than
dismissing the charges as a sanction. See, e.g., U.S. v. Fullerton, 187
F.3d 587, 590 (6th Cir.
1999), cert. denied 120 S. Ct. 961 (2000) (refusing to invalidate arrest and evidence
seized at
time of arrest because of subsequent McLaughlin violation). The Wisconsin Court of
Appeals
has held that reversal of a conviction and the granting of a new trial is not the appropriate
remedy for a McLaughlin violation absent a showing of both deliberateness of the
violation
and prejudice in the ability to prepare a defense. State v. Evans, 187 Wis. 2d 66,
92-93 n.7, 522
N.W.2d 554, rev. denied 189 Wis. 2d cxii (Ct. App. 1994); State v.
Golden, 185 Wis. 2d 763,
769, 519 N.W.2d 659, rev. denied 186 Wis. 2d cxvi (Ct. App. 1994).

Instead of dismissing charges or excluding evidence, many courts have found that the
most appropriate remedy was for the detainee to file a civil rights action against the detaining
authority. See U.S. v. Fullerton, 187 F.3d at 592; Luck v. Rovenstine,
168 F.3d 323, 326 (7th
Cir. 1999); Hallstrom v. City of Garden City, 991 F.2d 1473, 1480 (9th Cir. 1993).

Although Kansas courts have not addressed the question of the appropriate remedy
for a McLaughlin violation, they have discussed sanctions when a detention violates
statutory
requirements. In State v. Wakefield, 267 Kan. 116, 123-25, 977 P.2d 941 (1999),
the defendant
sought to suppress statements he made to the police when he was not given a prompt first
appearance as required by statute, which provides that an arrestee "shall be taken without
unnecessary delay" before the nearest magistrate. See K.S.A. 1999 Supp. 22-2901(1).

In Wakefield, the defendant was detained for more than 48 hours before
appearing
before a magistrate. The Supreme Court held, however, that "an unwarranted delay in taking
the accused before a magistrate after he or she has been arrested is not in itself a denial of due
process unless that delay has in some way prejudiced the right of the accused to a fair trial."
267 Kan. at 125. The Wakefield holding that due process was not violated is
contrary to
McLaughlin. As discussed above, however, the Wakefield court was
correct in assessing
whether the delay caused the defendant prejudice before determining whether relief should be
granted.

Ten years before McLaughlin, the Kansas Supreme Court held that
unnecessary delay
in taking a person before a judicial officer warranted dismissal of criminal charges "only under
extremely compelling circumstances" in cases where no other remedy would protect against
abuse. State v. Crouch & Reeder, 230 Kan. 783, 788, 641 P.2d 394 (1982)
(defendants detained
11 days before taken to magistrate). Where the delay has prejudiced the right to a fair trial,
the trial court, in its discretion, may suppress a confession or physical evidence obtained as a
result of wrongful conduct. In determining a form of remedy, a trial court should consider
the length of the delay, the reason for the delay, the defendant's assertion of his rights,
prejudice resulting to the defendant, and the severity of the crime charged. 230 Kan. at 788.
See also State v. Davis, 266 Kan. 638, 646, 972 P.2d 1099 (1999) (criminal charges
should be
dismissed only if a lesser sanction would not accomplish court's objective when prosecutor
refused to comply with discovery order).

We conclude Hershberger has failed to prove his detention prejudiced his ability to
prepare his defense to the charge. Consequently, dismissal of the case is not an appropriate
remedy.

Hershberger also complains his subsequent detention in March and April 1998
violated McLaughlin because the preliminary hearing was not held until April 24,
1998.
However, McLaughlin only applies to detentions which follow warrantless
arrests. 500 U.S. at
56-57.

The detention during March and April was based on a warrant issued after
Hershberger failed to appear in response to a summons. Warrants are issued once the
magistrate finds from the charging documents and/or affidavits that there is probable cause to
believe a crime has been committed and the defendant committed that crime. See K.S.A.
22-2302(1). At the time the warrant was issued, the court had the information as well as an
affidavit detailing the officers' knowledge at the time of Hershberger's arrest. These
documents provided sufficient probable cause to issue the warrant. Accordingly, the trial
court did not err in denying Hershberger's motion to dismiss under McLaughlin.

The Requirement of a Driver's License

Hershberger argues that the State had no authority to charge him with driving on a
suspended license because he was using his car for personal and not commercial purposes.
Hershberger's argument seems to be that because he has a constitutional right to travel, he
can drive on all public streets and highways without complying with any regulation when he
uses his vehicle only for personal purposes.

K.S.A. 1999 Supp. 8-235 prohibits any person from driving a motor vehicle upon a
highway in Kansas unless the person has a valid driver's license or is exempted from the same.
Hershberger has cited no statute which exempts him from the requirement of having a
driver's license if he operates a motor vehicle on the public roadways. See K.S.A. 8-236.
Instead, he essentially contends these statutes violate his constitutional right to travel.

Kansas has enacted a uniform act regulating traffic and establishing rules of the road.
See K.S.A. 8-1501 et seq. These laws were not designed to deter interstate or
intrastate
migration, nor do they penalize someone for exercising the right to travel. States have a
compelling interest in ensuring that motor vehicles are operated in a safe fashion on public
roads and highways. Therefore, States may adopt "[a]ny appropriate means . . . to insure
competence and care on the part of its licensees and to protect others using the highway"
without violating due process. Reitz v. Mealey, 314 U.S. 33, 36, 86 L. Ed. 21, 62 S.
Ct. 24
(1941), overruled on other grounds Perez v. Campbell, 402 U.S. 637, 653-54, 29 L.
Ed. 2d 233, 91
S. Ct. 1704 (1971).

So also, the issue of whether driving is a natural right was laid to rest in Popp v.
Motor
Vehicle Department, 211 Kan. 763, 766, 508 P.2d 991 (1973), when the court stated:

"It is elementary that the right to operate a motor vehicle upon a public street or
highway is not a natural or unrestrained right but a privilege which is subject to
reasonable
regulations under the police power of the state in the interest of the public's safety and welfare.
(Lee v. State, 187 Kan. 566, 358 P.2d 765 [1961].) The driver's license is not a
contract or a
property right in the constitutional sense, and therefore its revocation does not constitute the
taking of property. The privilege is granted to those who are qualified, who comply with
reasonable police power requirements in the interest of public safety and welfare, and is
withheld from those who do not."

See also State v. Bowie, 268 Kan. ___, ___ P.2d ___ (No. 82,929, filed on
March 10,
2000) (citing with approval the above holding from Popp).

Appellate courts across the country have rejected the type of argument Hershberger
raises. The reasoning in these cases is two-fold. First, regulations pertaining to licensing and
registration of vehicles do not deter one's right to travel because operating a car is only one of
many ways to travel. Second, these courts recognize the purpose of such regulations is to
advance the public interest in ensuring the competency of drivers operating on the roadway
and that drivers have adequate financial security to compensate potential injured parties. For
these reasons, these regulatory schemes have consistently been held constitutional. See,
e.g.,
Heninger v. Charnes, 200 Colo. 194, 198, 613 P.2d 884 (1980) (revocation of
driver's license
does not burden constitutional right to travel); State v. Cuypers, 559 N.W.2d 435,
436-37
(Minn. App. 1997) (State's mandatory automobile insurance laws do not violate
constitutional right to travel or to due process); City of Bismarck v. Stuart, 546
N.W.2d 366,
367 (N.D. 1996) (statutes requiring drivers' licenses and registration of vehicles
constitutional); State v. Booher, 978 S.W.2d 953, 955-56 (Tenn. Crim. App. 1997)
(same);
Carter v. State, 702 S.W.2d 774, 778 (Tex. App. 1986) (same).

"The plaintiff's argument that the right to operate a motor vehicle is fundamental because
of
its relation to the fundamental right of interstate travel, [citation omitted], is utterly frivolous.
The plaintiff is not being prevented from traveling interstate by public transportation, by
common carrier, or in a motor vehicle driven by someone with a license to drive it. What is
at issue here is not his right to travel interstate, but his right to operate a motor vehicle on the
public highways, and we have no hesitation in holding that this is not a fundamental right."

There is uniform consensus that state statutes requiring drivers' licenses and vehicle
registrations do not impermissibly impair a person's constitutional right to travel.
Hershberger's argument that he was not required to have a driver's license is without legal
merit.

Fifth Amendment Claims

Hershberger contends police officials and the trial court violated his Fifth Amendment
right against self-incrimination by penalizing him for failing to reveal his name upon arrest
and in court. An officer's attempt to elicit the name and address of a person legitimately
detained does not seek evidence of a testimonial nature bearing on the commission of a crime
and, therefore, does not implicate the privilege against self-incrimination. State v.
Taylor, 231
Kan. 171, 174, 642 P.2d 989 (1982). See also California v. Byers, 402 U.S. 424,
431-32, 29 L.
Ed. 2d 9, 91 S. Ct. 1535 (1971) (statute requiring California drivers to stop and identify
themselves after being involved in an accident does not implicate the Fifth Amendment).

Hershberger also complains he was forced to be fingerprinted and photographed at
jail. However, it does not violate the Fifth Amendment to compel a lawfully detained person
to submit to fingerprinting and photographs as these actions are not testimonial in nature.
Schmerber v. California, 384 U.S. 757, 764, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966).

For these reasons, Hershberger's complaints that his Fifth Amendment rights against
self-incrimination were violated are not persuasive.

Improper Mailing of Suspension Notice

Hershberger also argues the trial court should have dismissed the charge because the
State failed to prove the KDR's suspension notice had been properly mailed to him.
Hershberger argues that the notice was not sent to the street address set forth on his driver's
license, and, therefore, the KDR did not send it to his last known address.

We note K.S.A. 1999 Supp. 8-255(d) provides that upon suspending driving privileges,
"the division shall immediately notify the person in writing" and does not explicitly state
where the notice should be sent.

The notice of suspension in this case was sent to a post office box in Wichita, Kansas,
in July 1996. According to the State, the KDR's records had two addresses for Hershberger;
one was the post office box to which the notice was sent. Although his driver's license bore a
street address, Hershberger sent correspondence to KDR officials as early as March
1995--challenging their regulatory authority over him--using the post office box as a return
address.
Although the record does not clearly establish how the post office box became part of KDR's
records, it is reasonable to assume it was due to Hershberger's own correspondence with the
agency.

Proof of notice of mailing simply triggers a presumption of receipt of the notice.
However, this court has held that the State is not required to prove a proper notice was sent
in cases where a defendant has actual knowledge that his or her license has been suspended.
State v. Campbell, 24 Kan. App. 2d 553, 556, 948 P.2d 684, rev. denied
263 Kan. 887 (1997).

In this case, Hershberger clearly received the notice of suspension. He sent a letter
complaining of the notice to the KDR within 10 days of its mailing. Moreover, he was
convicted of driving while suspended in municipal court the morning of his arrest in this
case. Hershberger clearly knew of his suspended status and continued to operate his
automobile. Under Campbell, the question of the propriety of the notice is irrelevant
under
the uncontroverted facts of this case.

Other Issues

We have carefully considered each and every other issue raised by Hershberger and
conclude neither reversal nor modification of the trial court's decision is required under the
law and evidence.